As filed with the Securities and Exchange Commission on December 30, 1998
Registration No. 333-______
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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MODIS PROFESSIONAL SERVICES, INC.
(Exact name of registrant as specified in its charter)
Florida No. 59-3116655
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
One Independent Drive, Jacksonville, Florida 32202
(Address of principal executive office, including zip code)
-----------------------
AMENDED AND RESTATED
1995 STOCK COMPENSATION PLAN OF
CONSULTING PARTNERS, INC.
(Full title of plan)
-----------------------
Marc M. Mayo
Senior Vice President, Secretary and General Counsel
Modis Professional Services, Inc.
One Independent Drive, Jacksonville Florida, 32202
(904) 360-2000
(Name, address and telephone number, including area code, of agent for service)
-----------------------
Copies to:
Michael B. Kirwan
LeBoeuf, Lamb, Greene & MacRae, L.L.P.
50 North Laura Street, Suite 2800
Jacksonville, Florida 32202
(904) 354-8000
-----------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of each class Proposed Proposed maximum
of securities to be Amount to be maximum offering aggregate offering Amount of
registered registered* price per share** price** registration fee
<S> <C> <C> <C> <C>
Common Stock, 30,356 $13.84 $420,127.04 $116.79
$.01 par value per shares
share
======================= ======================= ======================= ======================== =====================
</TABLE>
*In addition, pursuant to Rule 416(a) under the Securities Act of 1933, this
registration statement also covers any additional securities to be offered or
issued in connection with a stock split, stock dividend or similar transaction.
**Determined on the basis of the average of the high and low sale prices on
December 28, 1998, solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) under the Securities Act of 1933.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from the Registration Statement in accordance with Rule
428 under the Securities Act of 1933, as amended (the "Securities Act of 1933")
and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have heretofore been filed by Modis
Professional Services, Inc. (the "Company") with the Securities and Exchange
Commission (the "Commission") pursuant to the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), are hereby incorporated by reference in this
Registration Statement:
l. The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997.
2. The Company's Quarterly Reports on Form 10-Q and Form 10-Q/A for the
quarters ended March 31, 1998, June 30, 1998 and September 30, 1998.
3. The Company's Current Reports on Form 8-K and Form 8-K/A dated October
1, 1998 and November 12, 1998.
4. The description of the Company's Common Stock contained in the Company's
Registration Statement on Form 8-A filed pursuant to Section 12 of the Exchange
Act, including all amendments or reports filed for the purpose of updating such
description.
All other documents subsequently filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in the Registration Statement and to be part
hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
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<PAGE>
Item 6. Indemnification of Directors and Officers.
Article 10 of the Bylaws of the Company require the Company, to the fullest
extent permitted or required by the Florida Business Corporation Act (the
"FBCA"), to (i) indemnify its directors against any and all liabilities and (ii)
advance any and all reasonable expenses, incurred in any proceeding to which any
such director is a party or in which such director is deposed or called to
testify as a witness because he or she is or was a director of the Company.
The Company's Bylaws also provide that the Company may purchase insurance
on behalf of one or more of its directors, irrespective of whether the Company
would be obligated to indemnify or advance expenses to such director. The
Company has purchased insurance to protect directors, officers, employees or
other agents and the Company from any liability asserted against them for acts
taken or omissions occurring in their capacities as such.
The Company's Articles of Incorporation limit or eliminate the liability of
the Company's directors or officers to the Company or its shareholders for any
monetary damages to the full extent permitted under the FBCA. The Company's
Articles of Incorporation also require the Company to indemnify a director or
officer of the Company who is or was a party to any proceeding by reason of the
fact that he or she is or was such a director or officer or is or was serving at
the request of the Company as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other
profit or non-profit enterprise against all liabilities and expenses incurred in
the proceeding except such liabilities and expenses as are incurred because of
his or her willful misconduct or knowing violation of the criminal law.
Section 607.0850(1) of the FBCA empowers a corporation to indemnify any
person who was or is a party to any proceeding (other than an action by or in
the right of the corporation) by reason of the fact that he or she is or was a
director, officer, employee or agent of the corporation or is or was serving at
the request of the corporation as a director, officer, employee or agent of the
corporation or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against liability incurred in connection
with such proceeding (including any appeal thereof) if he or she acted in good
faith and in a manner he or she reasonably believed to be in, or not opposed to,
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his or her conduct was
unlawful.
Section 607.0850(2) of the FBCA empowers a corporation to indemnify any
person who was or is a party to any proceeding by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth in the preceding paragraph,
against expenses and amounts paid in settlement not exceeding, in the judgment
of the board of directors, the estimated expenses of litigating the proceeding
including appeals, provided that the person acted under the standards set forth
in the preceding paragraph. However, no indemnification may be made for any
claim, issue or matter as to which such person is adjudged to be liable unless,
and only to the extent that, the court in which such proceeding was brought, or
any other court of competent jurisdiction, determines upon application that,
despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such
expenses that the court deems proper.
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<PAGE>
Section 607.0850(3) of the FBCA provides that to the extent a director,
officer, employee or agent of a corporation has been successful on the merits or
otherwise in the defense of any proceeding referred to in subsections (1) and
(2) of Section 607.0850 or in the defense of any claim, issue or matter therein,
he or she shall be indemnified against expenses actually and reasonably incurred
by him or her in connection therewith.
Section 607.0850(4) provides that any indemnification under subsections (1)
and (2) of Section 607.0850, unless determined by a court, shall be made by the
corporation only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances because he or she has met the applicable standard of conduct set
forth in subsections (1) and (2) of Section 607.0850. Such determination shall
be made:
(a) by the board of directors by a majority vote of a quorum consisting of
directors who were not parties to such proceeding;
(b) if such a quorum is not obtainable, or, even if obtainable, by a
majority vote of a committee duly designated by the board of directors (in which
directors who are parties may participate) consisting solely of two or more
directors not at the time parties to the proceeding;
(c) by independent legal counsel:
(1) selected by the board of directors as prescribed in paragraph (a)
or a committee selected as prescribed in paragraph (b); or
(2) if no quorum of directors can be obtained under paragraph (a)
no committee can be designated under paragraph (b), by a majority vote of the
full board of directors (in which directors who are parties may participate); or
(d) by the shareholders by a majority vote of a quorum of shareholders who
were not parties to such proceedings or if no quorum is obtainable, by a
majority vote of shareholders who were not parties to such proceeding.
Expenses incurred by a director or officer in defending a civil or criminal
proceeding may be paid by the corporation in advance of the final disposition
thereof upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it is ultimately determined that such director
or officer is not entitled to indemnification under Section 607.0850.
Section 607.0850(7) of the FBCA states that indemnification and advancement
of expenses are not exclusive and empowers the corporation to make any other
further indemnification or advancement of expenses of its directors, officers,
employees or agents under any bylaw, agreement, vote of shareholders or
disinterested directors or otherwise, for actions in an official capacity and in
other capacities while holding an office. However, a corporation cannot
indemnify or advance expenses if a judgment or other final adjudication
establishes that the actions of the director, officer, employee or agent (a)
violated criminal law, unless the director, officer, employee or agent had
reasonable cause to believe his or her conduct was lawful or had no reasonable
cause to believe his or her conduct was unlawful, (b) derived an improper
personal benefit from such transaction, (c) was or is a director in a
circumstance where the liability under Section 607.0834 of the FBCA (relating to
unlawful distributions) applies, or (d) engages
II-3
<PAGE>
in willful misconduct or conscious disregard for the best interests of the
corporation in a proceeding by or in right of the corporation to procure a
judgment in its favor or in a proceeding by or in right of a shareholder.
Section 607.0850(9) of the FBCA permits any director, officer, employee or
agent who is or was a party to a proceeding to apply for indemnification or
advancement of expenses to any court of competent jurisdiction.
Section 607.0850(12) of the FBCA permits a corporation to purchase and
maintain insurance for a director, officer, employee or agent against any
liability incurred in his or her official capacity or arising out of his or her
status as such regardless of the corporation's power to indemnify him or her
against such liability under this section.
According to Section 607.0831 of the FBCA, a director is not personally
liable for monetary damages to the Company or any other person for any
statement, vote, decision or failure to act, regarding corporate management or
policy, unless the director breached or failed to perform his duties as a
director and the director's breach of, or failure to perform those duties
constitutes: (i) a violation of criminal law, unless the director had reasonable
cause to believe his conduct was lawful or had no reason to believe his conduct
was unlawful; (ii) a transaction from which the director derived improper
personal benefit; (iii) a violation of Section 607.0834 of the FBCA, which
concerns unlawful payment of dividends; or (iv) in a proceeding by or in the
right of the corporation or a proceeding by or in the right of someone other
than the corporation or a stockholder, conscious disregard for the best interest
of the corporation, or willful misconduct, or recklessness or an act or omission
which was committed in bad faith or with malicious purpose or in a manner
exhibiting wanton and willful disregard of human rights, safety or property.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
Exhibit No.
4(a) Articles of Incorporation, as amended (incorporated herein by
reference to Exhibit 3 to the Company's Quarterly Report on
Form 10-Q for the quarter ended September 30, 1998).
4(b) Amended and Restated Bylaws (incorporated herein by reference
to Exhibit 3.1 to the Company's Quarterly Report on Form 10-Q
for the quarter ended June 30, 1998).
5 Opinion of LeBoeuf, Lamb, Greene & MacRae, L.L.P.
23(a) Consent of PricewaterhouseCoopers LLP
23(b) Consent of LeBoeuf, Lamb, Greene & MacRae, L.L.P. (included in
Exhibit 5)
24 Power of Attorney (included on the signature page of this
Registration Statement)
II-4
<PAGE>
Item 9. Undertakings.
The undersigned Company hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b), if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3 and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Securities and
Exchange Commission by the Company pursuant to section 13 or section 15(d) of
the Exchange Act, that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(4) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the Company's annual report pursuant to section
13(a) or section 15(d) of the Exchange Act (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to section 15(d) of the
Exchange Act) that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Company pursuant to the provisions
II-5
<PAGE>
described under Item 6 above, or otherwise, the Company has been advised that in
the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the Company of expenses incurred or paid by a director,
officer or controlling person of the Company in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the Company will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
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<PAGE>
POWER OF ATTORNEY
KNOW BY ALL PERSONS BY THESE PRESENTS that each person whose signature
appears below constitutes and appoints Derek E. Dewan, Michael D. Abney, Marc M.
Mayo, and Robert P. Crouch and each of them (with full power in each to act
alone), as his true and lawful attorneys- in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto such attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or either of them, or their or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Jacksonville, State of Florida on the 29th day of
December, 1998.
MODIS PROFESSIONAL SERVICES, INC.
By: /s/ Derek E. Dewan
______________________________
Derek E. Dewan
Chairman, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated on December 29, 1998.
Signature Title
/s/ Derek E. Dewan
- ---------------------------------- Chairman, President, Chief Executive
Derek E. Dewan Officewr and Director (principal executive
officer)
/s/ Michael D. Abney
- ---------------------------------- Senior Vice President, Chief Financial
Michael D. Abney Officer, Treasurer and Director (principal
financial officer)
/s/ Robert P. Crouch
- ---------------------------------- Vice President and Chief Accounting
Robert P. Crouch Officer (principal accounting officer)
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<PAGE>
/s/ John K. Anderson, Jr.
- ---------------------------------- Director
John K. Anderson, Jr.
- ---------------------------------- Director
T. Wayne Davis
/s/ Daniel M. Doyle
- ---------------------------------- Director
Daniel M. Doyle
/s/ Peter J. Tanous
- ---------------------------------- Director
Peter J. Tanous
II-8
<PAGE>
EXHIBIT INDEX
Exhibit
No. Page No.
- ------- --------
4(a) Articles of Incorporation, as amended (incorporated by reference
to Exhibit 3 to the Company's Quarterly Report on Form 10-Q for
the quarter ended September 30, 1998).
4(b) Amended and Restated Bylaws (incorporated herein by reference
to Exhibit 3.1 to the Company's Quarterly Report on Form 10-Q
for the quarter ended June 30, 1998).
5 Opinion of LeBoeuf, Lamb, Greene & MacRae, L.L.P.
23(a) Consent of PricewaterhouseCoopers LLP.
23(b) Consent of LeBoeuf, Lamb, Greene & MacRae, L.L.P. (included
in Exhibit 5)
24 Power of Attorney (included on the signature page of this
Registration Statement)
II-9
EXHIBIT 5
LEBOEUF, LAMB, GREENE & MACRAE, L.L.P.
A LIMITED LIABILITY PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
50 N. LAURA STREET SUITE 2800
JACKSONVILLE, FL 32202-3650
(904) 354-8000
FACSIMILE: (904) 353-1673
December 29, 1998
Modis Professional Services, Inc.
One Independent Drive
Jacksonville, FL 32202
Ladies and Gentlemen:
We have acted as counsel to Modis Professional Services, Inc., a Florida
corporation (the "Company"), in connection with the Registration Statement on
Form S-8 (the "Registration Statement") to be filed by the Company on or shortly
after the date hereof with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to
30,356 additional shares of the Company's common stock, par value $0.01 per
share (the "Common Stock"), to be issued pursuant to options outstanding under
the Amended and Restated 1995 Stock Compensation Plan of Consulting Partners,
Inc. (the "Plan"), which options were assumed by the Company in accordance with
the Agreement and Plan of Merger, dated as of August 31, 1998 among the Company,
Consulting Partners of Delaware, Inc., Consulting Partners, Inc., Cathy F.
Schermer, and Consulting Partners Employee Stock Ownership Plan and Trust(the
"Consulting Partners Transaction"). The Consulting Partners Transaction became
effective on August 31, 1998.
In connection with this opinion, we have made such investigations and have
considered such matters of law and of fact, including the examination of
originals or copies, certified or otherwise identified to our satisfaction, of
such records and documents of the Company, certificates of officers and
representatives of the Company, certificates of public officials and such other
documents as we have deemed appropriate as a basis for the opinions hereinafter
set forth. With respect to all of the foregoing documents, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals and the conformity to the originals of all documents submitted to
us as copies.
Based upon the foregoing, and subject to the qualifications stated herein,
we are of the opinion that:
1. Upon issuance, delivery and payment therefor in accordance with the
terms of the Plan, the Common Stock will be legally issued, fully paid and
non-assessable.
This opinion is limited to the laws of the State of Florida and the Federal
laws of the United States.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our name therein. In giving this
consent, we do not hereby admit that we come within the category of persons
whose consent is required under Section 7 of the Securities Act or the rules or
regulations of the Securities and Exchange Commission promulgated thereunder.
Very truly yours,
\s\ LeBoeuf, Lamb, Greene & MacRae, L.L.P.
EXHIBIT 23(a)
Consent of PricewaterhouseCoopers LLP
December 29, 1998
Consent of Independent Accountants
We consent to the incorporation by reference in the registration statement
of Modis Professional Services, Inc. on Form S-8 of our report dated March 20,
1998, except for notes 15, 16 and 17, as to which the date is November 11, 1998,
on our audits of the consolidated financial statements of Modis Professional
Services, Inc. as of December 31, 1997 and 1996, and for each of the three years
in the period ended December 31, 1997, which report is included in the company's
filing on Form 8-K, dated November 12, 1998.
\s\ PricewaterhouseCoopers LLP
Jacksonville, Florida
